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Wenneker Distilleries v. Olifant Usa

June 19, 2012

WENNEKER DISTILLERIES, PLAINTIFF
v.
OLIFANT USA, INC., AND DRINKS AMERICA, INC., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM ORDER

Presently pending before the Court are a motion to dismiss (Doc. No. 40) and a motion to strike (Doc. No. 47) filed by Defendant Drinks America, Inc. For the reasons stated more fully herein, the Court will deny the motion to dismiss and grant the motion to strike in part and deny the motion to strike in part.

I. BACKGROUND*fn1

Plaintiff Wenneker Distilleries ("Wenneker") alleges that, upon the request of Defendant Olifant USA, Inc. ("Olifant"), it sold goods, wares, and merchandise to Olifant, which Olifant received and accepted. (Doc. No. 35 ¶¶ 7, 9.) Olifant received copies of invoices stating the prices of these items, which Wenneker asserts were "fair, reasonable, and market prices that prevailed at the time of the transactions" and to which Olifant agreed. (Id. ¶¶ 8, 10-11.)

On or about January 15, 2009, Olifant and Defendant Drinks America, Inc. ("Drinks") entered into a stock purchase agreement ("the Agreement") under which Drinks agreed to purchase all outstanding shares of Olifant's capital stock for $1.2 million dollars and to pay all outstanding invoices owed to Wenneker. (Id. ¶¶ 16-17, 22.) Wenneker asserts that Drinks "has received and benefitted from the goods provided by Wenneker to Olifant in that Drinks['s] purchase price under the Agreement was discounted to account for Drinks['s] assumption of the liability owed to Wenneker." (Id. ¶ 18.)

Wenneker filed an amended complaint in this action on January 12, 2012. (Doc. No. 35.) On February 17, 2012, Drinks filed a motion to dismiss and a brief in support. (Doc. Nos. 40, 41.) Wenneker filed a brief in opposition on March 14, 2012. (Doc. No. 43.) Wenneker also filed a "response" to the motion to dismiss on March 15, 2012. (Doc. No. 45.) Drinks filed a motion to strike Drinks's response and to dismiss this action for failure to prosecute on March 21, 2012. (Doc. Nos. 47, 48.)

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court may "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum, 361 F.3d at 221 n.3. The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Indeed, the United States Supreme Court has held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of an entitlement to relief . . . . [F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips, 515 F.3d at 231-32 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

III. DISCUSSION

A. Motion to Dismiss

In its amended complaint, Wenneker raises third party beneficiary and unjust enrichment claims against Drinks. (Doc. No. 35.) Regarding the third party beneficiary claim, third party beneficiaries, along with the parties to a contract, can enforce the terms of that contract. See Chen v. Chen, 893 A.2d 87, 89 n.5 (Pa. 2006). Under Pennsylvania law:

[A] party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself, unless, the circumstances are so compelling that recognition of the beneficiary's right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Scarpitti v. Weborg, 609 A.2d 147, 150-51 (Pa. 1992) (internal citations omitted). In this case, Wenneker alleges that it was a third party beneficiary of the Agreement between Drinks and Olifant and, therefore, has the right to enforce certain terms of the Agreement. To support this allegation, Wenneker points to the third paragraph of the Agreement, which states in part: "[Drinks] specifically agrees that it will, and upon the Closing, assume those certain liabilities and obligations contained in the Financial Statements and as fully set forth in Schedule 'C' attached before and made a part hereof (the 'Assumed Liabilities') including, without limitation, those certain accounts payable to Wenneker Distilleries." (Doc. No. 35-3 at 5.) Schedule C, titled "Assumed Liabilites," lists sixteen unpaid invoices owed to Wenneker. (Id. at 12.) Despite Drinks's arguments to the contrary, the Court finds that Wenneker has sufficiently pled a third party beneficiary claim and, therefore, will deny Drinks's motion to dismiss this claim.

Next, Drinks moves to dismiss Wenneker's unjust enrichment claim. The Court recognizes that an unjust enrichment claim "is an appropriate alternative avenue for relief for the plaintiff to seek in the event no valid contract existed between [the parties]." Cornell Cos. v. Borough of New Morgan, 512 F. Supp. 2d 238, 265 (E.D. Pa. 2007). Under the doctrine of unjust enrichment, "the law implies that a contract exists when a party is found to have been unjustly enriched; the doctrine requires the offending party to pay the plaintiff the value of the benefit he has conferred on the defendant." Com. ex rel. Pappert v. TAP Pharma. Prods., Inc., 885 A.2d 1127, 1137 (Pa. Commw. Ct. 2005). To state a claim that Drinks has been unjustly enriched, Wenneker must allege that: (1) Wenneker established a benefit on Drinks; (2) Drinks appreciated ...


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